Imagine being a Mom who’s a service member and is either deployed, or assigned to a base, far from her family. Then your ex files to change your child custody plan simply because you are serving your country. It happens. So, states across the country have been actively creating laws to address this problem. Interestingly, there is currently federal legislation pending in Congress proposing that child custody laws for service members be federalized.
The American Bar Association and many other legal organizations are against this idea, encouraging the federal government to leave child custody matters to the states to protect the troops in their states. If this law passes, military child custody cases would be handled by Federal Judges in Federal Court. This would place a tremendous burden on military families, since Federal Court is very different than state court. It’s more expensive and the rules are not meant to be helpful to family law issues.
From a legal perspective, the Constitution restricts the federal judicial power to specified areas such as interstate commerce, international issues and defense. Family law has never been something for federal law or federal judges. It’s a state issue, and most legal scholars believe that is where is should stay.
Fortunately, state laws have been passed in about forty states that currently protect service members from losing custody of their children because of any kind of military assignment that takes them away from their families. In some states, rapid access to the courts is authorized for military parents, as is electronic or remote access to the courts. And some states allow the military parent to delegate their custodial time to a family member while they are unavailable. Almost every state either has these types of laws, or they are pending in their legislatures.
One Federal statute that applies in family law cases is the Service Member’s Civil Relief Act. This action protects service members who are deployed from having to litigate civil cases back home. This act may apply in your case if an action is filed against you while you are deployed, so be sure you have a lawyer who understands your rights as a service member if your ex files against you while you are deployed.
If you are a military parent, you are well advised to seek legal advice from an attorney who has experience in military child custody plans. It is critical that you learn your rights when faced with a deployment or reassignment that will impact your child custody plan. In fact, in anticipation of the inevitable reassignment, you will be asked by the military to execute a Family Care Plan, which will prompt you to give a great deal of thought about who you want to designate to exercise your custodial time in your absence. This should be someone with whom your children are very familiar and share a close relationship.
You don’t want to wait until you get orders to try and create a bond between your child and the people who will be stepping in while you are gone. And you really don’t want to be faced with the stress of figuring all of this out when you are faced with the sad task of preparing to leave your child for an extended period of time, particularly when you are faced with legal action by your ex.
DuBois Cary Law Group, PLLC
927 N. Northlake Way
Seattle WA 98103